Petition for Writ of Certiorari — Impson v. United States

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

“- 73-1720

JAMES BOB IMPSON

Vv.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS

FOR THE FIFTH CIRCUIT

MELVYN CARSON BRUDER

BARRY P. HELFT

706 Main Street (Suite 300)

Dallas, Texas 75202

Counsel for Petitioner

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apectemniinl

INDEX

Page

Opinions Below ----+++++-+++ 2+ ee ee cece ee eceeeeeeereeeeeeeees ]

oad atsbaearend avnunialiandinnies 2

Questions Presented . jeatna CI LS

Constitutional Provisions favelved . eee,

I cakiemnsnnaaunereqde means 3

Reasons for Granting the Writ ..........---++-s+sees0+. 5

A. The Extraneous Offense Question ........ 5

B. The Lack of Evidence Question .......... 15

Conclusion

Appendix A — Opinion Below . rae ..Al

Appendix B- Correspondence from the United Bl

States Court of Appeals for the Fifth Circuit

AUTHORITIES

Cases:

Baldivid, United uaa mer sad aside

(4th Cir. 1972) -- saath OR

Boyd v. United States, 142 Uz Ss. “450

(1892) . mi ishinien ieee

Rectan, United Gite Vv. 477 F 2d 991

hil ewens 4

Byrd, United States v., 352 F. 2d 570

RRP ee Seana EPO ae iT EEN ee Oe S

Cox v. United States 96 F. 2d 41 (8th Cir.

I niccaeciinindtateretnnantttneraperrncntnneine 17

Dutch, United States v., 357 F2d 331 (4th

Cir. 1966) .. csheondaiageallt

Fierson, United ieihen'< V.,; , 419 F 2d 1020

CI ccnceniceensientndhbicseemonpemetronsmepepeyehtindpemtnan: 11

Harper v. United States 239 F 2d 945

(D.C. Cir. 1956) . Sia dsc a

Harrington, United States v V., -, 490 F 24

487 (2nd Cir. 1973) . - ee 5

Johnson v. United States, 318 U. S. 189

(ITED nan vecntcnssnrctinanmmprinnitnsneeneatacssietwios st 8,14

“pibabuicctans GAA te. isan e

alt Rea hea Setat Sine nicest abba Ni §1a.3

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INDEX

Pave

Johnson, United States v., 413 F 2d 1396 7

(5th Cir, 1969) .......ccceecececeeeeceeeeeeeeeneeeeeeeees 17

Jones, United States v., 425 F 2d 1048

SE” SERS SRC rE ee 13

King v. United States, 402 F. 2d 289 (10th

i elimi chi 11,12

Magee, United States v., 261 F.2d 619

Re as cab Faces sca concensestevecsnesjecessoes 10

Mastrototaro, United States v., 455 F 2d

asia nnbdasines 7

Michelson v. United States 335 U.S. 469

I sii arics vnek hates sap Halibnlidiaiseadineeen cued eewndes >~T

Mills, United States v., 440 k' 2d 647 (6th

ee Eick anh cde cnnvioniqcnpienndechererenepeesoshnaers 13

Morgan v. United States 355 F 2d 43

Ce BE clas ane dedko vd gee vandicsvecceninns 11

Samuel, United States v., 431 F.2d 610

(42D Clr. 1GTD) ...ccnccccssccveseccesosncocserscssesesess 13

Thompson v. The King (1918) A.C. 221 .........14

Thompson v. Louisville, 362 U.S. 199

SINE 7 cnciancalighieeedaaaavasébcsncbevenasoaupet oes 16,17,18

United States v. Baldivid, 465 F 2d 1277

es ee nchbpeadenet 67,13

United States v. Broadway, 477 F 2d 991

i en enites 4

United States v. Byrd 352 F 2d 570 (1970) ......... 8,9

United States v. haere 357 F 2d 331 ee

Cir. 1966) .. 3 i as

United States | v. : Pin. 419 F2d 1020

a aiiek deticeyhscdepasecenstiecdatuneceaniense usee.oe 11

United States v. Harrington, 490 F 2d

Pe Se TIED oc cccaccocccecaressncentsonsen- 9, 14

United States v. Johnson, 413 F 2d 1396

ke el acge i a at a EN 17

United States v. Jones 425 F 2d 1048 (9th

ME Fire nckddcaleardbcacestsasdssvanceccestéoqess eee 13

United States v. Magee, 261 F.2d 619

CORE IE I oasis cave ccaceccasunaanssecgunsenceses 10

INDEX .

United States v. Mastrototaro, 455 F 2d ‘

8 bo ren eer rroue 7

United States v. Mills, 440 F 2d 647 (6th

eins ala deeninaianint 13

United States v. Samuel, 431 F 2d 610

CE OK «<5. as ehdunaabbdeicobdbaiadesouidtees 13

Watkins v. United States, 409 F 2d 1382

CO: SN Gh icons sbie Gnd ted A dagnstvenssnevecsis 17

Constitutional Provisions:

United States Constitution:

g 8 RECA ala ere Gre heen

SURICERD PEEVROUMCINO IIE oon s sn coce co cocnccsvccacnccce

Statues:

Federal Statues:

a EE co

(en vel ad

28 U.S.C. Sec. 1254(1).......

Miscellaneous:

Bere ©, Frog OG. RE vvencccccccceses

1 Jones on Evidence, Sec. 4: gerne

(1972)..

1 Wharton's Criminal } Evidence,

Sec. 240 (1972) .. ieee a Se

(III)

ER banintanc racy Hie. 27.0

PP SRG Aachen SAN Ni athe iI ES AS abet ais See

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No.

JAMES BOB IMPSON

Vv.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, JAMES BOB IMPSON, prays

that a writ of certiorari issue to review the

opinion and judgement of the United States Court

of Appeals for the Fifth Circuit rendered in these

proceedings on March 18, 1974 and on April 16,

1974.

OPINION BELOW

The opinion of the Court of Appeals is reported

at 490 F 2d 1372 and appears at Appendix A,

infra)

JURISDICTION

The jurisdiction of this Court is invoked under

28 U.S.C., Sec. 1254(1) This petition for certiorari

was filed less than 30 days after the court of

appeals’ entry of final judgment on April 16, 1974

following denial of the petition for rehearing *‘led

by the petitioner, as required by Rule 22(2),

Rules of this Court. See Appendix B, infra)

QUESTIONS PRESENTED

1. Whether under the facts and cir-

cumstances of the case the introduction of

evidence of an extraneous offense violated

petitioner’s rights under the Fifth and

Sixth Amendments.

2. Whether the charges of which

petitioner was convicted are so devoid of

evidentiary support as to render the con-

victions unconstitutional under the due

process clause of the Fifth Amendment.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the Constitution

provides in pertinent part:

No person shall be held to answer for a

capital, or otherwise infamous crime, un-

less on presentment or indictment of a

Grand Jury * * *; nor shall any person * * *

be deprived of life, liberty, or property,

without due process of law. * * *.

The Sixth Amendment to the Constitution

provides in pertinent part:

In all criminal prosecutions, the accused

shall enjoy the right to a * * * trial, by an

impartial jury * * * and to be informed of

the nature and cause of the accusation * *

2

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STATEMENT

After a jury trial in the United States District

Court for the Eastern District of Texas,

petitioner wa‘. convicted on two counts of

transporting and receiving a stolen vehicle in

interstate commerce, in violation of 18 U.S.C.

2312 and 2313.1 He was sentenced to five years

imprisonment on each count.

On appeal a panel of the court of appeals

affirmed petitioner’s conviction. The original

opinion Was modified slightly after petitioner

filed a petition for rehearing; however, the result

of the appeal was unchanged (App. B, infra. p.).

1. In July, 1970 the Allis-Chalmers Manufac-

turing Company assembled at its Deerfield,

Illinois, plant a Model No. 645 front-end loader

bearing Serial No. 24802984, Transmission No.

26624 and Axle No. 3-70-0006. On October 12, 1970,

an Allis-Chalmers 645 front-end loader was

determined to be missing and presumed to have

been stolen from. Road Machinery Company of

Doraville, Georgia; however, the missing loader

was not identified with any more particularity

than by model number, viz, a645 loader. AnAllis- .

Chalmers 645 loader bearing Transmission No.

26624 and Axle No. 3-70-0006 (but with the serial

number removed) was recovered in a rural area

near McKinney, Texas, on May 12, 1971. .

In addition to proof of the above facts the

Government also adduced evidence during

presentation of its case-in-chief that in

December 1970 or January 1971 petitioner and

Bryant sold a stolen backhoe to a man in

McKinney, Texas. The trial court admitted the

1Co-defendant Charles Daryll Bryant, now deceased, was con-

victed of receiving but was acquitted vu: irunsporting the vehicle.

3

evidence pertaining to the backhoe for the

limited purpose of showing state of mind or

intent and so charged the jury. The trial court

also instructed the jury that “possession of

property recently stolen, if not satisfactorily

explained, is ordinarily a circumstance from

which the Jury may reasonably draw the in-

ference and find in the light of surrounding

circumstances shown by the evidence in the case

that the person in possession knew the property

had been stolen.’’ (Tr. 988) 2

Petitioner did not testify nor did he offer any

testimony to refute the Government’s case.

3. Petitioner contended on appeal that

evidence of the extraneous (backhoe) offense

was not admissible (1) because the extraneous

offense was not similar to the primary offense,

as required by United States v. Broadway, 477

F.2d 991 (5th Cir. 1973), and (2) because the issue

of intent or state of mind had not been joined by

petitioner. The court of appeals addressed only

the first contention concluding that “the

testimony regarding the missing backhoe bore

heavily on the question of criminal intent” (490

F.2d at 1378) and that the evidence was admissi-

ble under the ‘‘rule which permits the introduc-

tion of proof of prior acts to establish knowledge

or intent where such an element is an essential

element of the offense charged’ (490 F.2d at

1377).

The court of appeals did not address the

contention that there was no evidence connec-

ting petitioner to the theft of the front-end loader

in Georgia. Petitioner specifically averred that

there was no evidence particularly identifying

the loader stolen in Georgia so that a favorable

*“Tr.”’ refers to the transcript of petitioner's trial.

4

comparison was possible between the stolen

loader and the one placed in petitioner's posses-

sion. The court’s opinion speaks only of what

proof satisfies the requirement that there be a

nexus betweer the stolen vehicle and the

recovered vehicle; the court did not address the

issue that since there was no proof of what

specific vehicle was taken in Georgia there could

be no proof that petitioner possessed the vehicle

allegedly taken in Georgia. 490 E2d at 1375.

REASONS FOR GRANTING THE WRIT

THE EXTRANEOUS OFFENSE QUESTION

It is beyond cavil that in English-speaking

jurisdictions an accused is entitled to be tried

upon the accusation made in the pleading filed

against him and not upon some collateral offense

or for being a criminal generally. Michelson v.

United States, 335 U.S. 469 (1948).° Thus, as a

general rule, proof of an extraneous offense is

error. However, exceptions have developed

where the need for proof of collateral crimes to

shed light on material, disputed issues in the

case outweighs the prejudice inherent in such

evidence; in such situations proff of extraneous

offenses is not error.* Among the common excep-

tions to the general rule are situations where an

issue exists as to the motive, knowledge, intent

or state of mind of the accused vis-a-vis the

offense charged in the indictment. The crux of

the exception is that evidence of extraneous

offenses does not become material unless the

issue to which it relates is in dispute. In deciding

petitioner’s case the court of appeals applied a

‘See also 22A C.J.S., Sec. 682: and 1 Wharton's Criminal

Evidence, Sec. 240 (1972).

ot a ee PER nt

test which permits proof of prior offense charg-

ed’’. 490 F.2d at 1377. Application of that test

represents a radical departure from the

accepted doctrine relating to use cf extraneous

offenses resulting in a substantial denial of due

process to all accused and places the court of

appeals for the Fifth Circuit in direct conflict

with the rulings of other courts of appeals and in

substantial conflict with expressions of this

Court necessitating resolution by this Court.

Whether the introduction of evidence of an

extraneous offense is to be allowed turns on

balancing the necessity for its admission against

its prejudicial effect. Before such evidence

should be admitted the trial court must conclude

that it is not unduly prejudicial and is truly

needed by the prosecution. It is not enough that

the evidence sheds light on an essential element

of the crime for this is but one element of the test

of admissibility of extraneous offenses; there

must also be a need for the evidence — which

exists when there is a real dispute over the

element to which the evidence is said to apply.

Judge Sobeloff eloquently made the argumentin

his separate opinion, concurring in part and

dissenting in part, in United States v. Baldivid,

465 F.2d 1277 (4th Cir. 1972):

(E)ven where it is conceded that the

challenged evidence may be technically

fitted into one or more of the exceptions

found in the treatises, consideration stili

should be given to the prejudicial potential

of the evidence of other crimes on the

minds of the jurors. (Citations omitted).

The danger of undue prejudice is not cured

‘See generally 1 Jones on Evidence, Sec. 4:15 (1972).

6

eS ee an

merely because the evidence falls within

an exception to the rule; the prejudice

remains inherent in the testimony. Before

such prejudicial evidence is to be placed

before the jury, the district court must not

only decide whether the evidence of prior

crimes is independently relevant, but also

whether, notwithstanding its relevancy, it

is not unduly prejudicial and, moreover, is

truly needed by the prosecution.

id. at 1283. This admonition was given by the

senior circuit judge in a case where the ex-

traneous offense evidence was offered in rebut-

tal to the defendant’s own testimony denying any

wrongdoing.® In the caseat bar the issues of

knowledge and intent were not joined by

petitioner; thus there was no real necessity for

the Governinent to adduce proof of the ex-

traneous offense.

This Court concluded in Michelson that

because of the prejudice inherent in proof of

extraneous offenses, such evidence may not be

adduced ‘‘on the prosecution’s case-in-chief.”’

335 U.S. at 475. A corollary to the rule is that

evidence of extraneous offenses is admissible

only when the accused joins an issue to which

such evidence is relevant. Noting the ‘‘vastly

different’ rules that apply when the accused

testifies from those applicable when the accused

‘It should be noted that Judge Sobeloff wrote the majority

opinions in United States v. Mastrototaro, 455 F.2d 802 (4th Cir.

1972), and United States v. Dutch, 357 F.2d 331 (4th Cir. 1966),

upon which the Baidivid Majority relied. Those cases stand for

the proposition that the admission of extraneous offenses is

proper where the prosecution is faced with the necessity of

clarifving the defendant's ‘‘arguably ambiguous”’ conduct.

7

te <0 Cee ae

refrains from testifving, this Court has indicated

that “inquiry into a collateral crime un-

connected with the offense charged” is improper

where the accused does not testify or join any

issue. Johnson v. United States, 318 U.S. 189, at

195 (1943). The opinions support the rule applied

by other circuits, and specifically rejected by the

court of appeals in petitioner’s case, that (1) it is

never proper for the prosecution to adduce

evidence of extraneous offenses during presen-

tation of its case-in-chief and therefore (2) it is

never proper for the prosecution to adduce

evidence of extraneous offenses in rebuttal un-

less such evidence relates to an issue which the

accused has joined by his testimony on the

testimony of his witnesses.

The applicable rule fashioned by the Second

Circuit utilizes a ‘‘real necessity”’ test.

Where the prejudice is substantial and

the probative value, through the nature of

the evidence or the lack of any real

necessity for it is slight, its admission

(during the prosecution’s case-in-chief)

may be held to be an abuse of discretion.

United States v. Byrd, 352 F 2d 570, at 575 (1970).

If the accused does not ‘sharpen’ the issue of

intent by asserting that the act charged was done

innocently, there can be no real necessity which

requires the prosecution to offer during its main

case evidence of an extraneous offense bearing

on the issue of intent; and if the accused does not

contest the prosecution's main case, the issue

would be no more sharpened than before thereby

authorizing proof of an extraneous offense in

Vlora Rik hewiyte

WM AR Oi 5 Rall Reet WALD

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BB iit sesrmrcsnscoridiawiateseiciiteiriee

rebuttal.® In United States v. Harrington, 490 F.

2d 487 (2nd Cir. 1973), the court said:

If, at his ‘.ial, a defendant does not take

the witness stand in his own defense, and if

he has not himself been responsible for

causing the jury to be informed about his

previous convictions, he is entitled tohave

the existence of any prior criminal record

concealed from the jury.

/d. at490. Inasmuch as evidence that the accused

committed an extraneous offense is as indicative

that he has a criminal record as is proof of a

mugshot, Harrington precludes the prosecution

from proving an extraneous offense when the

accused exercises his rights not to testify nor to

present defensive testimony. To permit proof of

extraneous offenses where the accused does not

affirmatively contest the Government’s case is

as destructive of his right to testify as the

mugshot was held to be in Harrington , Clearly,

under Bird and Harrington. proof of the backhoe

transactions under the instant circumstances

would be held improper by the court of appeals

for the Second Circuit.

*To the extend that Bird refers to certain rare cases where proof

of the offense charged would not necessarily include evidence

from which intent might be inferred, it should be noted that

primarily because of the presumption flowing from unexplained

recent possession of stolen property afforded the Government in

the case, this case is not one where proof of the physical elements

does not include evidence from which the mental elements can be

inferred by the jury.

SDAA i POONA AIOE INE ig eT E CBT:

The court of appeals for the Seventh Circuit

has stated the rule as follows:

More than (similarity of offenses and

close proximity in time) is required (for

the legitimate use of extraneous offense

evidence). Obviously intent must be an

element of the offense to justify the admis-

sion of this type of evidence. Prior

criminal acts cannot be proved to show

intent when intent is not an element of the

offense charged. United States v. Menk, .

406 F 2d 124, 7th Cir. 1969). Equally obvious

is the fact that when intent is a material

element of the offense, it is part of the

prosecuting attorney’s case to be proved in

chief lest he find himself out of court at the

close of his evidence.

However, to justify admission into

evidence of an accused’s prior criminal

acts toestablish willfulness and intent, it is

necessary that willfulness and intent be

more than merely formal issues in the

sense that the defendant is entitled to an

instruction thereon. See United States v.

Magee, (261 F. 2d 609, 7th Cir. 1958). When

* ** the government has ample evidence to

take the case to the trier of fact for its

deliberation, a plea of not guilty cannot, by

itself, be construed as raising such a keen

dispute on the issue of willfulness and

intent so as to justify admission of this type

of evidence. See United States v. Magee,

supra.

10

CER OT ET cn Irae TN TRS TTY Hw

SS Le STR SS VS Tit fe eran FN gd

Ee

United States v. Fierson, 419 F. 2d 1020, at 1022-

1023 (1969). In Fierson the defendant testified

and denied committing the physical act charged.

The court held that no issue of intent was raised

by such a Ccfense; thus the prosecution’s use of

extraneous offenses was reversible error. Ob-

viously petitioner’s failure to testify could not

have sharpened the issue of intent so that the

backhoe transaction would have been admissi-

ble under the rule accounced in Fierson.

In King v. United States, 402 F. 2d 289 (10th Cir.

1968), the court of appeals reaffirmed the ruleas

set out in Morgan v. United States, 355 F. 2d 43

(10th Cir. 1966), as the law applicable to the use of

extraneous offenses to show intent.

** * evidence is not admissible to show that

the person then on trial committed another

and independent crime than the one for

which he is there charged. The case

further state that this general proposition

is subject to an exception which permits

the introduction of evidence as to the

specific acts which constitute a crime

where such evidence tends to establish a

common scheme, plan, system, or design,

and where it is so related to the crime

charged that it serves to establish that

crime charged or to establish a motive,

intent, or absence of mistake or accident

as to the crime charged. (Citations

omitted).

*e #2 ee e2 H HH HH

Evidence of other crimes than the one

charged must however have a real

probative value and not just a possible

worth on issues of intent, motive, absence

11

AN

PRP BC PEO OF AM Talent

of mistake or accident, or to establish a

scheme or plan. These are the key words

which express the purpose for which an

exception to the general exclusionary rule

is applied under prior decisions. The

words are however not without limit as to

breadth and meaning. They must be and

will be realistically and closely defined

and limited. They cannot become an occa-

Sion or excuse or device for offering

evidence of other crimes which have little

or no real probative value or which is

cumulative. This matter is obviously a

most sensitive one for the accused and for

the trial court. The risk and danger is

great, and this must be recognized when

considering the probative value of such

evidence of specific acts offered to prove

the crime is charged.

Id. at 291. In the case a’ bar the backhoe

transaction was cumulative of the evidence of

intent adduced in connection with proof of the

offense charged. Especially in view of the

presumption of guilty knowledge inferable from

petitioner’s unexplained recent possession of the

front-end loader the backhoe transaction held no

real probative value as direct evidence. Since

petitioner did not join any issue the evidence was

not admissible in rebuttal. Under Aing. error

occurred when the prosecution adduced the

evidence relating to the backhoe.

The rule that the admission of extraneous

offenses to establish intent turns not only on

whether intent is an essential element of the

offense charged but also upon whether there is a

real necessity for adducing such proof has the

12

apparent acceptance of three other circuits. In

Harper v. United States, 239 F.2d 945 (D.C. Cir.

1956), it was held that proof of extraneous

offenses was permissible in rebuttal to the defen-

dant’s clci.n that he innocently committed the

act charged. In United States v. Baldivid, supra, ,

proof of an extraneous offense was held proper

as rebuttal to the defendant’s denial of some of

the prosecution’s evidence and his claim that he

acted innocently as to some of the Government’s

charges.’ In United States v. Mills, 440 F.. 2d 647

(6th Cir. 1971), the defendant’s denial of the

knowledge essential to a conviction was said to

authorize, in rebuttal, proof of prior offenses to

show knowledge and intent.

The certain holdings of a majority of the

courts of appeals — with which the court of

appeals in this case conflicts — is well stated by

Lord Sumner in an important and highly rele-

vant precedent in legal philosophy.

(T)he mere theory that a plea of guilty

puts everything material in issue is not

enough for this purpose. The prosecution

cannot credit the accused with fancy

defenses in order to rebutt them at the

outset with some damning piece of pre-

judice.

*See also United States v. Samuel, 431 F.2d 610 (4th Cir. 1970).

“The Ninth Circuit court of appeals said in United States v. Jones,

425 F.2d 1048 (1970), that evidence of prior offenses was

admissible to show intent and knowledge as well as to refute the

defendant's testimony denving knowledge of co-conspirator’s

acts. It is unclear whether Jones’ turns on the fact that the

evidence became admissible when the defendant raised an issue

as to knowledge — and thus follows the majority rule — or

whether /oncs’ holding is similar to the holding of the court of

appeals in this case — that the evidence was admissible

regardless of the lack of defensive testimony raising an issue.

13

FDS MEISE IAS I ce ht

Ns EAL el ERI a

Thompson v. The King, (1918) A.C. 221, at 232.

This is precisely what the court of appeals

approved in this case. The backhoe incident was

spread before the jury by the Government dur-

ing presentation of its case-in-chief purely an-

ticipation of petitioner’s joining the issue of

intent — an event which never came topass. The

holding of the court of appeals in this case is in

direct conflict with the rulings of at least three

(and probably six) other circuits and with es-

tablished legal opinion regarding the propriety

of admission of extraneous offenses during the

prosecution’s case-in-chief

In addition to the conflict among the circuits

regarding the admissibility of extraneous

offenses as evidence of intent during the

prosecution’s case-in-chief certiorari should be

granted to review the opinion in this case insofar

as it permits infringement upon an accused’s

Fifth Amendment right to remain silent. We

learn from Johnson v. United States, supra. , that

the ‘‘allowance of the privilege (to refuse to

testify) would be a mockery of justice, if either

party is to be affected injuriously by it.’’ 318 U.S.

at 196 - 197. When petitioner elected not to testify

nor present other defensive testimony he was

entitled to be free from the use of all evidence

which, though proper in rebuttal, was inadmissi-

ble as direct evidence. Proof of the extraneous

offense during the prosecution’s case-in-chief

effectively denied petitioner his right to remain

silent. See United States v. Harrington, supra.

Finally, it is urged that certiorari be granted to

determine if, under the facts and circumstances

of this case, proof of the backhoe transaction

constitutes a denial of petitioner’s right to notice

14

VN Paar

See Re Bea i OR CERCA NE te igtp tes Scr aS

of those charges before the same may be used

against him. In Boyd v. United States, 142 U.S.

450 (1892), this Court reversed a murder convic-

tion because the prosecution was allowed to

adduce eviience of robberies committed by the

accused prior to the murder. The Court. noted

that “(i)n relation to these matters , (the

robberies) the witnesses went into details as

fully as if the defendants had been upon trial for

the robberies they were, respectively, charged

by the evidence with having committed.” /d. at

454. In holding the admission of extraneous

offenses to be reversible error this Court said:

No notice was given by the indictment of

the purpose of the government to in-

troduce proof of them.

Id. at 458.

Petitioner respectfully submits that the writ

be granted in order to (1) resolve the serious

conflict among the circuits regarding the ad-

missibility of extraneous offenses as direct

evidence of intent, (2) exercise this Court’s

supervisory power over the federal courts and

determine if it can ever be proper to adduce

evidence of prior offenses where the accused

elects not to testify, and (3) determine if this

Court’s language in Boi requires pre-trial

notice to an accused of the Government’s intent

to introduce at his trial evidence of an ex-

traneous offense.

THE LACK OF EVIDENCE QUESTION

The issue presented is extremely narrow:

When the Government fails to specifically prove

the identity of a stolen vehicle so that it can be

distinguished from other vehicles initsclasscan

15

a conviction under either 18 U.S.C. Sec. 2312 or 18

U.S.C. Sec. 2313 result? In Thompson v.

Louisville, 362 U.S. 199 (1960), this Court said ‘‘it

is a violation of due process to convict and runish

a man without evidence of his guilt.”’ Jd. ut 206.

Thompson was convicted of loitering and dis-

orderly conduct. The record established an

evidentiary void as to the elements of each

offense and thus the convictions were reversed.

In the case at bar petitioner was charged with

having transported and received a particular

front-end loader alleged to have been stolen in

Georgia. It was reasonably established by proof

of identical axle and transmission numbers that

the loader recovered in Texas was the identical

loader manufactured by Allis-Chalmers 645

loader, which generally fit the description of the

loader seized in Texas, was stolen from Road

Machinery in October 1970. What was not es-

tablished is that the particular loader manufac-

tured in July 1970 and recovered in Texas in May

1971 was the identical loader stolen from Road

Machinery. The only affirmative evidence bear-

ing on the identity issue is the notation in Allis-

Chalmers’ records that the identified loader was

shipped to Road Machinery. No one bore witness

to Road Machinery’s receipt of the particularly

described loader; no one from Road Machinery

identified the stolen loader with any greater

particularity than describing it as an Allis-

Chalmers 645 front end loader.

The court of appeals overlooked the issue

posed by petitioner and misconstrued

petitioner’s claim as a challenge to the rule that

identity of engine serial numbers is the exclusive

method of establishing common characteristics

to prove that the vehicle found in the accused’s

possession was the vehicle stolen. Petitioner’s

16

claim was that while the identity of the vehicles

might be established by any evidence of common

characteristics, see Cox v. United States, 96 F 2d

41 (8th Cir. 1938), it was incumbent upon the

Governm ~.it to establish the identity of the front-

end loader stolen from Road Machinery with

greater particularity than simply as an Allis-

Chalmers 645 loader. Absent evidence to es-

tablish the individual identity of the loader stolen

from Road Machinery in Georgia there is no way

of. knowing that the specific loader recovered

and placed in petitioner’s possession. was the

identical loader alleged in the indictment to have

been taken from Road Machinery in Georgia.

Specificity is required as to proof on both ends of

the offenses — the stolen vehicle and the

recovered vehicle must each be specifically

identified and must each have a common

characteristic unique to that vehicle.’

This case comes within the Thompson v.

Louisville holding because here, as in Thomp-

son, the prosecution failed to prove an offense

had occurred. The issue here, asin Thompson, is

not whether the evideice is insufficient to sup-

port the jury’s verdict (as would be the case if the

Government had simply failed to connect

petitioner to a proven offense). Here the Govern-

Situations similar to that presented in this case can be found in

Watkins v. United States, 409 F.2d 1382 (5th Cir. 1969), and United

States v. Johnson, 413 E2d 1396 (5th Cir. 1969). In both cases the

Government was able to show that the make, model, color and

body style of the tehicle found in the accused's possession was the

same as that of the vehicle stolen. However, in both cases there

was no testimony from the owner distinctively identifying the

vehicle and distinguishing it from other vehicles in its class.

Because of this void the convictions were reversed.

17

eS ARR

ment failed to establish one of the essential

elements of the offense charged, viz., that a

particular vehicle with a distinctive identity had

been stolen, as alleged in the indictment.! Ab-

sent proof of such an element there is no offense

shown to which petitioner or anyone can be

connected and found guilty of committing.

Where such an evidentiary void exists in the

prosecution’s essential case due process is

violated if a conviction results.

Under the peculiar facts of this case this Court

should grant certiorari and either reverse the

conviction under the Thompson decision or re-

mand the case to the court of appeals for further

consideration in light of Thomson.

CONCLUSION

For the reasons stated a writ of certiorari

should have issue to review the holding of the

court of appeals herein.

Respectfully Submitted

MELVYN CARSON BRUDER

BARRY P. HELFT

706 Main Street (Suite 300)

Dallas, Texas 75202

Counsel For Petitioner

WAllis-Chalmers did not assert, nor did the Government allege or

argue that the vehicle in question was stolen from Allis-

Chalmers. It was thus incumbent upon the Government to prove,

as an element of the offense alleged in the indictment, that a

particularly identifiable vehicle was taken from Road

Machinery in Georgia.

18

ee OR ee PET EO RE

APPRENDIX A

OPINION OF THE UNITED STATES COURT

OF APPEALS

FOR THE FIFTH CIRCUIT

IN

UNITED STATES v BRYANT

ee wy Bs

INDEXED

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles Daryll BRYANT and James Bob Impson,

: Defendants-Appellants.

No. 73-2257.

United States Court of Appeals,

Fifth Circuit.

March 18, 1974.

Defendants were convicted before the United States Dis-

trict Court for the Eastern District of Texas at Sherman,

William Wayne Justice, J., for violations of statutes relating

to transporting and receiving a vehicle in interstate commerce

and they appealed. The Court of Appeals, Ainsworth, Circuit

Judge, held that evidence was sufficient to prove identity of

the stolen vehicle and to establish guilt of defendant who

claimed that he relied on codefendant’s representations of

ownership of the vehicle; that evidence of defendants’ in-

volvement in sale of another piece of stolen heavy equipment

was admissible on question of criminal intent even though the

other offense involved only intrastate commerce; and that

denial of severance was not prejudicial.

Affirmed.

1. Automobiles <=341

While there must be some evidence of common character-

istics of stolen vehicle and vehicle found in possession of the

accused other than color, make and model of the vehicle, in

order to sustain conviction under statutes pertaining to trans-

portation, sale or receipt of stolen vehicles in interstate com-

merce, identity of the engine serial number is not required.

18 U.S.C.A. §§ 2312-2314.

Synopses, Syllabi and Key Number Classification

COPYRIGHT © 1974, by WEST PUBLISHING CO

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court. 1780

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1781 UNITED STATES v. BRYANT

2. Automobiles @=355(12)

Evidence that serial numbers on plates attached to axle

and transmission of front-end loader found in possession of

defendants matched t!.ose of front-end loader stolen in Geor-

gia was sufficient to prove identity of the stolen vehicle

transported in interstate commerce. 18 U.S.C.A. §§ 2312-

2314.

3. Automobiles ¢=355(12)

Evidence that defendant and codefendant hauled front-

end loader stolen in Georgia to a place near Branch, Texas for

repairs and that defendant paid mechanic for his services was

sufficient to establish defendant’s possession of the stolen

vehicle transported in interstate commerce. 18 U.S.C.A.

§ 2313.

4. Automobiles 341

Mere possession unaccompanied by knowledge of the pos-

sessor that vehicle is stolen is insufficient to sustain a convic-

tion for sale or receipt of stolen vehicle transported in inter-

state commerce. 18 U.S.C.A. § 2313.

5. Criminal Law ¢=370, 371(1)

Evidence in prosecution for transporting a stolen front-

end loader in interstate commerce that defendants were in-

volved in sale of a stolen backhoe was admissible for purpose

of showing knowledge or intent even though the backhoe had

moved only in intrastate commerce. 18 U.S.C.A. §§ 2312,

2314.

6. Criminal Law 369.1

Generally the admission of prior acts of misconduct of a

defendant is not permitted.

7. Criminal Law 370, 371(1)

Proof of prior acts is admissible to establish knowledge or

intent where such an element is an essential element of the

offense charged, such prior acts are similar, and are not too

remote in time from the offense charged.

(A2)

UNITED STATES v. BRYANT 1782

8. Criminal Law o=1153(1)

Acceptance or rejection of evidence is matter within the

trial court’s broad discretion, which will not be disturbed on

appeal except on a showing of abuse.

9. Criminal Law 674

Exciusion of evidence offered by defendant attempting to

show defendant’s reliance on codefendant’s claim of exclusive

ownership of stolen front-end loader transported in interstate

commerce was not an abuse of discretion. 18 U.S.C.A. § 2313.

10. Criminal Law <=1169.5(1)

Evidence erroneously admitted may be cured in most

circumstances by withdrawing it from the jury’s consideration

and instructing the jury to disregard it.

11. Criminal Law @1169.5(2)

Instruction in prosecution relating to transporting and

receiving a stolen vehicle in interstate commerce to disregard

testimony of defendant that codefendant had been “counter-

feit convicted” rendered error harmless. 18 U.S.C.A. §§ 2312,

2314.

12. Criminal Law 2=683(1)

Where defendant, charged with offense relative to trans-

porting and receiving a stolen front-end loader in interstate

commerce, contended that he relied in good faith on codefend-

ant’s representations of ownership of the loader, it was appro-

priate for government to rebut defendant's assertion of inno-

cence by producing evidence which showed not only that

codefendant’s bill of sale was fraudulent but, because of the

transparency of the fraud, it was unreasonable to believe that

defendant relied on it. 18 U.S.C.A. §§ 2312-2314.

13. Criminal Law e=622(1), 1148

Granting or denying severance is matter of discretion

within province of trial court, which ruling will rarely be

disturbed unless the movant makes a positive showing that he

has been prejudiced by the ruling. Fed.Rules Crim.Proc. rule

14, 18 U.S.C.A.

(A3)

PA le EEE BE Tg Be HD

1783 UNITED STATES v. BRYANT

14. Criminal Law =1166(6)

Denial of severance to defendants charged with violation

of statutes relative to transporting and receiving stolen vehi-

cle in interstate com*ierce was not prejudicial. 18 U.S.C.A.

§§ 2312-2314; Fed.Rules Crim.Proc. rule 14, 18 U.S.C.A.

15. Criminal Law @=633(1)

A fair trial, not a perfect one, was all defendants were

entitled to.

Appeals from the United States District Court for the

Eastern District of Texas.

Before COLEMAN, AINSWORTH and GEE, Circuit

Judges.

AINSWORTH, Circuit Judge:

Bryant and Impson were jointly charged and tried on a

three-count indictment for violations of 18 U.S.C. §§ 2312,

2313 and 2314, respectively, relative to transporting and re-

ceiving a _ vehicle—a front-end loader—in interstate

commerce.’ Bryant was found guilty on Count 2, Impson on

Counts 1 and 2, Count 3 having been dismissed by the Govern-

ment against both defendants. Both defendants appeal.

On July 15, 1970, Road Machinery, Inc. purchased from

Allis-Chalmers Manufacturing Company a front-end loader

bearing the following identifying numbers: Model No. 645,

Serial No. 24S02984, Transmission No. 26624, Axle No. 3-70

1. 18 U.S.C. § 2312:

“Whoever transports in interstate or foreign commerce a motor

vehicle or aircraft, knowing the same to have been stolen, shall be

fined not more than $5,000 or imprisoned not more than five

years, or both.”

18 U.S.C. § 2313:

“Whoever receives, conceals, stores, barters, sells, or disposes

of any motor vehicle or aircraft, moving as, or which is a part of,

or which constitutes interstate or foreign commerce, knowing the

same to have been stolen, shall be fined not more than $5,000 or

imprisoned not more than five years, or both.”

The count under 18 U.S.C. § 2314 was withdrawn.

(A4)

OC ON Ae ES CAI EA Ak ee ce al

UNITED STATES v. BRYANT 1784

0006. The vehicle was assembled at the Allis-Chalmers plant

at Deerfield, Illinois, and shipped to Road Machinery, Inc. at

Doraville, Georgia. On October 12, 1970, an Allis-Chalmers

front-end loader, Model No. 645, was determined to be missing

from the Road Machinery plant at Macon, Georgia. Fresh

Wheel tracks indicated that the vehicle had been driven from

the front yard area where it) had been previously placed. The

local police were notified that the vehicle was missing. On

May 12, 1971, an Allis-Chalmers front-end loader, bearing the

same transmission and axle numbers as those on the vehicle

sold to Road Machinery in July 1970 but with the serial

number missing, was recovered in a rural area in the vicinity

of McKinney, Texas, when a Texas highway patrolman

stopped a large truck in which appellant Bryant was a passen-

ger. The reason for stopping the truck was that it was

pulling a trailer carrying an excessive and oversized load, an

Allis-Chalmers front-end loader, and the trailer lacked the

requisite motor vehicle inspection certificate. Just minutes

prior to this incident the same highway patrolman had

stopped appellant Impson who was driving a Lincoln Conti-

nental automobile. The front-end loader was later deter-

mined to be the same vehicle stolen from Georgia. Both

appellants were subsequently atrested--and--eharged.

At the trial Impson presented no testimony nor did he elect

to testify. Bryant, however, testified and introduced testimo-

ny of several witnesses in an attempt to establish that he was

unaware that the front-end loader had been stolen.

Appeliants make numerous contentions on appeal, none of

which warrants the granting of new trials or reversal of their

convictions? We affirm.

2. Appellants make the following contentions on appeal:

1. The evidence was insufficient to prove that the vehicle seized,

possession of which was attributed to the defendants, was the

vehicle alleged to have been stol®n.

2. The evidence was insufficient to establish Bryant's guilt.

(A5)

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1785 UNITED STATES v. BRYANT

The evidence was sufficient to prove identity of the stolen

vehicle.

{1,2} - In order to sustain a conviction under the pertinent

statutes the stolen .enicle and the vehicle found in possession

of the accused must be identical. While there must be some

evidence of common characteristics cther than color, make and

model of the vehicle, in order to establish proof, identity of

the engine serial number is not required. United States v.

Jonnson, 5 Cir., 1969, 413 F.2d 1396; Watkins v. United

States, 5 Cir., 1969, 409 F.2d 1382. The Government’s evi-

dence showed that in the place where the engine serial num-

ber plate would normally be affixed there were instead four

holes and that the number plate is easily removable with a

screwdriver or tin snips, as are the axle and transmission

number plates. The axle serial number plate is affixed to the

rear face of the main housing and is accessible only by

crawling beneath the vehicle; the transmission serial number

plate is similarly affixed to the lower outside face of the

transmission. Although the serial number plates could con-

ceivably be interchanged, this is not probable; it would result

in damage to the light aluminum plates which are fastened by

metal drive screws that tap themselves as they are driven in.

A jury could reasonably have concluded that the less accessi-

ble, less obviously placed axle and transmission number plates

were inadvertently overlooked by the person or persons who

3. The Government was improperly allowed to adduce evidence of

an extraneous offense, that is, the purported theft of a motor

vehicle known as a “backhoe.”

The backhoe transaction was inadmissible as evidence against

Bryant.

The trial court improperly excluded relevant, material and excul-

patory evidence offered by Bryant.

Evidence that Impson had previously been convicted of counter-

feiting tainted his convictions.

Testimony that the bill of sale for the loader tendered by Impson

to Bryant was not valid was outside the scope of rebuttal as to

Impson and prejudiced him.

8. The defendants were entitled to, and the court should have

granted, a severance to each defendant.

(A6)

= - F ©

a Tle ae

UNITED STATES v. BRYANT 1786

removed the engine serial plate. The make and model as well

as the axle and transmission numbers of the recovered vehicle

were identical to those of the stolen vehicle. Under the

circumstances, we consider this ample proof of identity.

The evidence was sufficient to establish Bryant's guilt.

[3] Appellant Bryant contends that the Government failed

to prove his possession, either actual or constructive, of the

stolen vehicle, a necessary element for conviction under 18

U.S.C. § 2313. We do not agree. Approximately six weeks

prior to the arrest, appellants hauled the No. 645 front-end

loader on a truck to the property of James Graham in the

vicinity of Branch, Texas, for repairs to be performed by

Graham. Bryant rode in the cab of the truck driven by

Impson. When they arrived at their destination both Bryant

and Impson attempted to unload the vehicle. However, it was

necessary to secure additional assistance, and Bryant and

Impson were left with the vehicle while Graham telephoned

for wrecker service, which arrived about 45 minutes later.

When the unloading was eventually accomplished, it was

Bryant who paid the mechanic for his services, although

Bryant testified that the money was furnished by Impson for

that purpose. The loader was eventually repaired by Graham

and plans were made to pick it up. On May 12, 1971, Impson

inthe company of Bryant rented a tractor-trailer and a driver

from Karel Pekarek. An arrangement was made for the

hired driver, Clifton Eugene Forrest, to follow Bryant and

Impson to the vicinity of Branch, Texas, where they would

‘oad the vehicle on to the trailer and haul it to Sulphur

Springs, Texas. With the assistance of Bryant, Forrest se-

cured the loader to a trailer by the use of a chain and boom.

Bryant and Forrest then proceeded toward Sulphur Springs,

Texas, but were stopped and arrested when they reached the

vicinity of McKinney, Texas. The district court in a very

thorough and comprehensive charge properly instructed the

~

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1787 UNITED STATES v. BRYANT

jury on the types of possession cognizable under the law in the

following language:

“The law recognizes two kinds of possession, actual posses-

sion and construc.:.e possession. A person who knowingly

had direct physical control over a thing at a given time is

then in actual possession of it. A person who, although not

in actual possession, knowingly has both the power and the

intention at a given time to exercise dominion or control

over a thing, either directly or through another person or

persons, is then in constructive possession of it.

“The law recognizes also that possession may be sole or

joint. If one person alone has actual or constructive posses-

sion of a thing, possession is sole. If two or more persons

share actual or constructive possession of a thing, possession

is joint.

“You may find that the element of possession, as that term

is used in these instructions, is present if you find beyond a

reasonable doubt that the accused had actual or construc-

tive possession, either alone or jointly with the others.”

[4] Viewing the record and inferences in the light mosi

favorable to the Government we cannot say that the evidence

was insufficient to convince a jury that Bryant was in posses-

sion of the front-end loader. Glasser v. United States, 315

U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942). Mere

possession, of course, unaccompanied by knowledge of the

possessor that the vehicle is stolen, is insufficient to sustain a

conviction under 18 U.S.C. § 2313, and the trial court so

instructed. In order to show lack of such knowledge Bryant

attempted to prove that he relied on Impson’s representations

that he was the lawful owner of the vehicle, and introduced

for that purpose a bill of sale dated March 31, 1971 showing

Impson as the purchaser and 7. L. Williams and James L.

Wilson, partners, doing busin. ss as Universal Constructors, as

sellers. In rebuttal the Government offered evidence from

various sources tending to show that the purported sale was a

(A8)

+ Gaetan

ee ee ARTS esis 5 aio

UNITED STATES v. BRYANT 1788

sham and a fraud and so obviously fictitious that Bryant could

not reasonably have been deluded by it. The jury’s verdict

demonstrates that it did not accept Bryant’s explanation of

his participation in the handling of the vehicle and thus

ascribed guilty knowledge to him.’

Evidence of an extraneous offense relating to a “backhoe”

was properly admitted against Impson and Bryant. ,

The Government’s evidence showed that on or about De-

cember 12, 1970, a backhoe, a heavy tractor, was stolen from

the B & D Company at Dallas, Texas. In late December 1970

or early January 1971, appellant Impson telephoned James R.

Graham and informed him that he had a backhoe which he

was interested in selling. Graham contacted a friend, Johnny

Broyles, who was desirous of purchasing a backhoe, and a

meeting between Graham, Broyles and Impson was subse-

quently arranged by Graham to be held at a cafe in McKin-

ney, Texas. Bryant was also present at the cafe during the

meeting. All four men then rode out to where the backhoe

was parked, about three miles from McKinney, Texas. Imp-

son drove his car accompanied by Bryant. Impson then drove

the truck-trailer on which the backhoe was loaded to Broyles’

place of business where the four men again met. Negotia-

tions for the sale were subsequently completed and Broyles

purchased the equipment. In May 1971 the backhoe was

identified by its rightful owner to be the one stolen from the

3. Other circumstances bear on this issue. Bryant testified that he

had never been in Macon, Georgia. However, he had been em-

ployed by Wheeling Auto Crushers until May 1971, and as late as

March or April 1970 Bryant was known to have been in Brunswick,

Georgia, where the company was then operating. Wheeling used

equipment similar to, but smaller than, the stolen front-end loader.

In October 1970, Road Machinery Company at Macon, Georgia (the

plant from which the loader was stolen that month) repaired

another front-end loader for Bryant’s brother-in-law, Roy Miller, the

owner of Wheeling Auto Crushers. The business card which Miller

presented when the repairs were made shows both his name and

that of Bryant's. In the latter part of 1970, Bob Impson was seen at

Macon, Georgia, at the wrecking yard of Wheeling by one of its

employees.

(A9)

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1789 UNITED STATES v. BRYANT

B & D Company and it was subsequently seized in Denton

County, Texas, by a deputy sheriff. Over objection of appel-

lants the district court admitted the evidence pertaining to the

backhoe for the lined purpose of showing state of mind or

intent of the defendants, and so charged the jury.

[5] Appellants contend that there was a fatal flaw in the

backhoe evidence inasmuch as that vehicle had moved only in

intrastate commerce within the State of Texas, whereas inter-

state commerce is a crucial element of a prosecution under the

pertinent statutes, citing United States v. Broadway, 5 Cir.,

1973, 477 F.2d 991. In Broadway there was a lack of similari-

ty between mere endorsement of forged money orders and

endorsement plus cashing of forged money orders. The latter

offense was the offense charged and cashing or uttering was

necessary to put the money orders in the flow of interstate

commerce, an essential element for conviction. Without the

element of transportation the prior acts constituted no of-

fense, state or federal. In the instant case, the prior act of

defendants required no additional element of interstate trans-

portation to constitute an offense, although a state offense.

The decision in Broadway is based on its peculiar facts. There

“the government’s direct proof was slim” on the issues of.

intent and guilty knowledge, 477 F.2d at 994, and the other

offenses were “offered to shore up a weak case as to intent

and guilty knowledge.” 477 F.2d at'995. This is not true in

the present case, and although Impson appears to have been

the spokesman and leader, the evidence is nonetheless conclu-

sive that Bryant, as well as Impson, knew that the equipment

was stolen.

[6,7] Generally the admission of prior acts of misconduct

of a defendant is not permitted. However, we have long

subscribed to the exception to that rule which permits the

introduction of proof of prior acts to establish knowledge or

intent where such an element is an essential element of the

offense charged, such prior acts are similar, and are not too

remote in time from the offense charged. Weiss v. United

(A10)

8 Ni VAR ITEM wd | |

UNITED STATES v. BRYANT 1790

States, 5 Cir., 1941, 122 F.2d 675; Gilstrap v. United States, 5

Cir., 1968, 389 F.2d 6.

We stressed the necessity for similarity of extraneous of-

fenses in United States v. Broadway, supra. However, the

similarity contemplated by the exception is a matter of rele-

vancy and is “judged by the degree in which the prior acts

approaches’ near identity with the elements of the offense

charge. There is no necessity for synonymity but there must

be substantial relevancy for purposes other than to show the

probability that the person committed the offense being tried

because he is a man of criminal character.” United States v.

Kasouris, 5 Cir., 1973, 474 F.2d 689, 692. See also United

States v. Mancuso. 5 Cir.; 1970, 423 F.2d 23, in which we found

the nature of nine prior offenses involving either forgery or

false pretense similar to a Dyer Act offense with which

defendant was charged, and upheld the introduction in evi-

dence of those offenses for the limited purpose of showing

intent.

We have no difficulty here in finding similarity between the

prior acts and the offenses charged. The backhoe and front-

end loader road tractors are both characterized as heavy

equipment. They were both determined to be missing at

approximately the same time. It is apparent that the testimo-

ny regarding the missing backhoe bore heavily on the question

of criminal intent, an element necessary for the Government

to establish under each count of the indictment, and we find

no infirmity in its admission in evidence.

There was no impropriety in the exclusion of so-called excul-

patory material offered by Bryant.

[8,9] Bryant attempted to offer evidence showing various

transactions by Impson in connection with’ the front-end load-

er. By using the vehicle as collateral, and furnishing a

promissory note executed by him and a co-signer, Clarence

Stark, Impson obtained a loan of $12,000 from the Southwest-

ern Investment Company. Impson and Stark defaulted on

(A11)

‘ ol a

Za ny . CPPS Di BT

1791 ' UNITED STATES v. BRYANT

, payment and Southwestern filed suit for the amount due,

alleging in its petition its belief that Impson’s purported

purchase of the vehicle was fictitious. Impson also obtained

theft insurance. vn the vehicle and thereafter filed a claim

against the insurer alleging theft. Based on a defense of

Impson's fraudulent misrepresentations relative to the owner-

ship of the loader, the insurer obtained a judgment against

Impson. Thus Bryant attempted to show Impson’s claim of

exclusive ownership of the loader and Bryant's reliance there-

on. These transactions occurred subsequent to the time when

Bryant was shown to have possessed the vehicle. Acceptance

or rejection of evidence is a matter within the trial court's

broad discretion, which will not be disturbed on appeal except

on a showing of abuse. United States v. Abshire, 5 Cir., 1972,

471 F.2d 116; United States v. Garr, 5 Cir., 1972, 461 F.2d 487.

We find no such abuse here.

Evidence that Impson had previously been convicted was

harmless error.

During cross-examination by Government counsel Bryant

was asked:

Q. Have you ever had any more transactions with Mr.

Impson regarding a front-end loader or backhoe or a similar

piece of equipment?

Bryant replied: |

A. I haven’t had any transactions with Mr. Impson for the

last six months since he was counterfeit convicted.

Counsel for Impson requested that the remark be stricken and

that the court declare a mistria!. The trial judge immediately

admonished the jury to disregard for all purposes the answer

of the witness. Then, out of the presence of the jury, the

_ judge reprimanded Bryant and cautioned him not to refer

again to any misconduct or conviction of Impson. The court

refused to declare a mistrial.

‘

[10,11] Appellants contend that the instruction could not

eradicate the prejudice inherent in such evidence. We do not

(A12)

UNITED STATES v. BRYANT 1792

agree. See, for example United States v. Pritchard, 5 Cir.,

1969, 417 F.2d 327, in which evidence of a prior conviction of a

defendant elicited from him by the Government was held

harmless error where the jury was instructed to disregard it.

It is a well-settled rule in this cireuit that evidence erroneous-

ly admitted may be cured in most ciredmstances by withdraw-

ing it from the jury’s consideration and instructing the jury to

disregard it, as was done in this case. See United States v.

Troise, 5 Cir., 1978, 483 F.2d 615; United States v. Pritchard,

supra; Hill v. United States, 5 Cir., 1966, 363 F.2d 176;

Conner v. United States, 5 Cir., 1963, 322 F.2d 647; Fahning v.

United States, 5 Cir., 1962, 299 F.2d 579; Helton v. United

States, 5 Cir., 1955, 221 F.2d 338. The Supreme Court has

declined to hold that all errors, even constitutional errors,

“regardless of the facts and circumstances, must always be

deemed harmful.” Chapman v. State of California, 386 U.S.

18, 21, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 709 (1967). Where

such evidence, in the opinion of the court after reading the

record, has little impact on the mind of the jury and the

evidence of guilt is overwhelming, the error may be con-

sidered harmless. See Harrington v. California, 395 U.S. 250,

89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); United States v. Stein-

koenig, 5 Cir., 1978, 487 F.2d 225. This is such a case, and in

light of the fact that the trial judge withdrew the evidence

from the jury and directed them to disregard it, the error was

harmless.

The Government's rebuttal evidence relative to the purported

bill of ‘sale furnished to Impson was properly admitted.

[12] As already indicated, Bryant contends that he relied

in good faith on Impson’s representations of ownership of the

front-end loader. It was appropriate under the circumstances

for the Government to rebut Bryant’s assertion of innocence

by producing evidence which showed not only that the bill of

sale was fraudulent but, because of the transparency of the

fraud, that it was unreasonable to believe that Bryant relied

on it. Appellants contend, however, that in regard to Impson

(A13)

aed

pe a ee ee

1793 UNITED STATES v. BRYANT

the evidence was prejudicial and outside the scope of rebuttal.

We do not agree. Appellants concede in their brief on appeal

that the court instructed the jury that the evidence should be

considered only against Bryant. In view of this instruction

and the overwhelm'=, evidence of Impson’s guilt, we find no

merit to this contention.

The defendants were not entitled to severance.

[13,14] Under Rule 14 of the Federal Rules of Criminal

Procedure, separate trials may be granted if defendants ean

show that prejudice would result from their joinder. The

existence of prejudice depends largely on the facts and cir-

cumstances of each case. Therefore, the granting or denial of

a severance is a matter of discretion within the province of

the trial court, which ruling will rarely be disturbed unless the

movant makes a positive showing that he has been prejudiced

by the ruling. Tillman v. United States, 5 Cir., 1969, 406 F.2d

930, 934; United States v. Kershner, 5 Cir., 1970, 432 F.2d

1066, 1071; United States v. Edwards, 5 Cir., 1974, 488 F.2d

1154, 1160; United States v. Pacheco, 5 Cir., 1974, 489 F.2d

554. We have examined appellants’ allegations of prejudice

under the various issues presented, and have found nothing

more than a theory that separate trials might afford a better

chance of acquittal. This is no justification for the granting

of a severance. Tillman v. United States, supra, 406 F.2d at

934.

[15] The trial was a lengthy one, lasting seven days, the

witnesses were numerous and the documentary evidence was

abundant. As a consequence, objections from all parties

abounded and the district judge had a tedious job keeping the

trial within the proper bounds to assure the defendants a fair

trial. A fair trial, not a perfect one, is all they were entitled

to, United States v. Harden, 5 Cir., 1972, 469 F.2d 65; United

States v. Calles, 5 Cir., 1973, 482 F.2d 1155, and in our opinion

this is what they received.

Affirmed.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

(Al4)

-_

APPENDIX B

CORRESPONDENCE FROM THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

REGARDING THE PETITION FOR REHEAR-

ING

FILED IN

UNITED STATES UNITED STATES v

BRYANT

United States Court of Appeals

FOR THE FiFTH Circuit

October Term, 1973

No. 73-2257

D. C. Docket No. CR 1471

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES DARYLL BRYANT and JAMES BOB

IMPSON

Defendants-Appellants.

the United States District Court for the

Eastern District of Texas

Before COLEMAN, AINSWORTH and GEE, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court’ for the Eastern

District of ‘Texas, and was argued by counsel;

ON CONSIDERATION WHERBOF, It is now here ordered and adjudged

by this Court that the judgment of the said District Court in this

oause be, and the same is hereby, affirmed.

March 18, 1974

Issued as Mandate:

(B1)

Awited States Count of Appeals

runt comcUIT

LOWAND Ww WADSWORTH OFFICk OF THE CLENK #00 CAMP STREET

e.see iw ORL CLANS. LA 70130

April 16, 1974

TO ALL COUNSEL OF RECORD

Re: No. 73-2257 - U.S.A, v. Bryant and fimpson

Gentlemen:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing,* and no member of

the panel nor Judge in regular active service on the Court

having recuested that the Court be pelled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 12) the petition( ) for rehear-

ing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH

CLERK

*on behalf of James Bob Impson only Deputy Clerk

ce: Mr. Melvyn Carson Bruder

Ur. Dennis R. Lewis

(B2)

SAREE OWS he

0 Raa MBA OF Oe

RPS BORER ———

aluited: States Court of Appeals

FIFTH CIRCUIT

EOWARO W WADSWORTH OFFICE OF THE CLERK 00 CAMP STREET

c.eee NEW ORLEANS. LA. 70130

April 16, 1974

Mr. Charles Nelson

West Publishing Co,

50 West Kellogg Blvd.

St. Paul, Minn. 55102

Re: No. 73-2257 - U.S.A. v. Charles Daryll Bryant and

James Bob Impson

(Index page No. 1780)

Dear Mr. Nelson:

Prior to final publication please correct the opinion in

the above cause so that at Page 1789, line 21, strike the

sentence which reads "The decision in Brmdway is based on

its peculiar facts." In the next following sentence strike

the word “There” and insert in lieu thereof “In Broadway"

and the balance of the sentence would read as it is now.

Very truly yours,

EDWARD W, WADSWORTH, Clerk

By Aidt Be Aaiaine”

/sbi

cc: Mr. Melvyn Carson Bruder

Mr. Dennis R. Lewis

(B3)

NG A OO POLY LOE NARBENE er

ilnited States Court of Appeals

FIFTH CIRCUIT

EDWARD W. WADSWORTH OFFICE OF THE CLERK S00 CAMP STREET

cocan NEW OFLEANS. LA 70130

April 26, 1974

Mr. Melvyn Carson Bruder

Attorney at Law

706 Main Street, Suite 300

Dallas, Texas 75202

No. 73-2257 - U. S. A. vs. Charles Daryll Bryant and

James Bob Impson

MANDATE STAYED To: May 16, 1974 - AS TO JAMES BOB IMPSON ONLY

Dear Sir:

The court has this day granted a stay of the issuance of the

mandate to the date as shown above. If during the period of

the stay there is filed with the clerk of this court a notice

from the clerk of the Supreme Court that the party who has

obtained the stay has filed a petition for the writ in that

court, the stay shall continue until final disposition by the

Supreme Court. Upon the filing of a copy of an order of the

Supreme Court denying the petition for writ of certiorari the

mandate shall issue immediately under Rule 41, FRAP,

Under revised Rule 21(1) of the Supreme Court effective July a.

1970, a record is no longer required in connection with an

application for writ of certiorari, and therefore will not be

routinely prepared by this office (38LW 3502),

Enclosed is a copy of the opinion, judgment and our letter

advising that rehearing was denied, which are still required

by the Supreme Court to be incorporated as an appendix ‘to your

opinion, - ‘

Very truly yours,

EDSARD W. WADSWORTH, Clerk

wrote

enc. as puty Cle

cc Messrs. Roby Hadden

Dennis R. Lewis

(B4)

wick

SSA hd ere abi NEA ALT NR CT a Sa arcaig 4) oad aces bees ak

en

ee Se ey Te ee

LETS Cone cee. Some “ rem

UNITED STATES COUNT OF APPEALS pal 2.

FOR THE FIFTH CIRCUIT as =

oOo: ~ aon

ec: °. 53%

--' ‘

eo ~

re >

) =

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, )

)

oe : mo, 73-2287

CHARLES DARYLL BRYANT and JAMES BOB )

IMPSON, )

De fendants-Appellants. )

)

ON CONSIDERATION OF THE APPLICATION of the James Bob Impson

in the above numbered and entitled cause for a stay of the mandate

of this Court therein, to enable James Bob Impson to apply for

and to obtain a writ of certiorari from the Supreme Court of the

United States. IT IS ORDERED that the issuance of the mandate of

this Court in said cause be, and the same is stayed to and including

May 16, 1974 » the stay to continue in force until the final

disposition of the case by the Supreme Court, provided that within

the period above mentioned there shall be filed with the Clerk of

this Court the certificate of the Clerk of the Supreme Court that

certiorari petition has been filed. IT IS FURTHER ORDERED that

the Clerk shall issue the mandate upon the filing of a copy of an

order of the Supreme Court denying the writ, or upon the expiration

of the stay granted herein, unless the above mentioned certificate

shall be filed with the Clerk of this Court within that time.

we: A Br aoe, |

-

LD wolsati le

(BS)

~ IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No.

~

JAMES BOB IMPSON

ah Vv.

UNITED STATES OF AMERICA

PROOF OF SERVICE

I, Melvyn Carson Bruder, one of the counsel for

James Bob Impson, petitioner herein, and a

member of the Bar of the Supreme Court of the

United States, hereby certify that on the 14thday

of May, 1974, I served copies of the foregoing

Petition with Writ of Certiorari and Motion to

Dispense With Printing Petition for Certiorarion

the Honorable Robert Bork, Solicitor General of

the United States of America, United States

Department of Justice, Washington, D.C., and

the Honorable Roby Hadden, United States At-

torney, P.O. Box 1049, Tyler, Texas, by mailing

copies of said documents in duly addressed

envelopes, with air mail postage prepaid.

CARSON BRUDER